The Bradley Manning Enemy List

Among the stranger aspects of the court martial of Bradley Manning, the Army private who is accused of giving hundreds of thousands of classified files to WikiLeaks, is the prosecution’s idea of what it means to aid our enemies. This is one of the most serious charges against Manning. In an opening statement, Captain Joe Morrow, an Army prosecutor, promised that “the evidence will show that the accused knowingly gave intelligence to the enemy.” Morrow proceeded to say, according to a preliminary transcriptassembled by trial observers, that Manning and other soldiers had been warned about WikiLeaks in their briefings: he should have “understood the nature of the organization.” Does that mean that WikiLeaks was the enemy Manning spoke to and helped? Not quite. Morrow continued:

You will hear that enemies of the United States reviewed information provided by P.F.C. Manning. You will hear evidence that during the raid that killed Osama bin Laden government officials collected several items of digital media. On one of these items of digital media was the entire CIDNE Afghanistan database released on WikiLeaks as well as Department of State information.

Our enemies, then, read the information that Wikileaks “released”—to the public, and in coöperation with other media outlets, not at some Al Qaeda dead drop. Readers of the New York Times, the Guardian, and other publications read it, too, after those outlets made the files not only available but more easily searchable. Perhaps another prosecutor, in this case or the next one, will argue that a defendant should have “understood the nature” of the Times. Or that of The New Yorker. What might it have meant, legally, if a copy of our magazine, bought at a news kiosk in Karachi, was found rolled up on the floor of bin Laden’s complex in Abbottabad? How much are we meant to be judged by what we can guess about the character of our readers?

It would be one thing if the prosecutors’ apparent plan to call a Navy SEAL to the stand was just a rhetorical flourish—a fancy way of saying that no person, whether a middle-school student or a terrorist, should be reading the secrets of the United States on the front page of the paper. (That point is at least debatable, and is already built into laws on classification.) But the talk of our enemies and how they watch us is a part of the legal case against Manning that should be troubling no matter what you think of him.

The biggest question about this court martial is why it is happening at all. Put aside for a moment—not forever, though—any discussion about whether Manning is a whistleblower or a renegade soldier, an idiot or a hero, because it won’t explain why he arrived in his dress uniform before a judge Monday. Manning has said that he would plead guilty to ten of the twenty-two charges against him, involving willfully sending out and wrongfully storing classified information. That offer was accompanied by a confession, which Manning gave without securing anything in return. The charges are not minor: Manning is delivering himself up for what could be two decades in prison. The government decided to press forward anyway with even more serious charges involving the Espionage Act of 1917, passed to prosecute spies; a computer-fraud statute; and of military laws against “aiding the enemy,” which usually means material aid—the statute mentions “arms, ammunition, supplies, money, or other things”—and can carry the death penalty, though in this case it’s life in prison. (Prosecutors accepted a lesser plea on a single count, related to files about Iceland.) This is why enemies matter so much.

So why isn’t the government declaring victory and taking the guilty plea? If Manning is convicted on all counts, his sentence might be longer. Weighed against that, as always with pleas, would be the value of avoiding lengthy proceedings. It’s also in the interests of justice when someone who has broken a law is forced to take responsibility for it. And, as the Washington Post’s Eugene Robinson put it, “Twenty years is enough penalty to deter other potential leakers.” It has already been established in court that the military mistreated Manning while he was held, for months, in solitary confinement. That should be placed in the balance. The government might also consider that it could lose.

Or was setting precedent the important thing? Is the idea here to make a point about what kind of a crime leaking is? Prosecutors did dig up an earlier example of charging someone with aiding the enemy by printing something in a newspaper, but it was back in 1863, during the Civil War, and an imperfect parallel. (It involved coded advertisements.) Military-law and First Amendment expertswidely regard the charge as overreach. The Espionage Act, too, is a clumsy and destructive tool; its use is one of the reasons the Justice Department’s leak investigations, involving the A.P. and Fox News and others, have been so broad and even abusive. If so, insisting that Manning, who is willing to face the consequences of what he did, also validate a distorted view of what secrecy means is not only excessive but pernicious.

On Tuesday, a defense lawyer asked Adrian Lamo, a former hacker who gave investigators logs of his chats with Manning, whom he knew as bradass87, if Manning had ever said that he “wanted to help the enemy.” Lamo, according to a report from the Post’s Julie Tate, answered, “Not in those words, no.” The defense says that Manning was an idealist, moved by civilian deaths, sure that Americans needed to know what their government did. Manning’s state of mind matters, because the judge, in what Arun Rath of PBS described last month as a victory for the defense, said that prosecutors needed to show he had “reason to believe” he would be helping Al Qaeda. But she accepted the prosecution’s argument that it would not need to show that Manning had any direct contact with an actual enemy.

Instead, the prosecution’s theory opens up a world of enemies. Manning’s lawyer, in explaining his decision to give war logs to Wikileaks, said that Manning realized they described “activity for the most part that was engaging with the enemy, so the enemy was aware of what was happening. He knew that.” For Manning, in other words, the enemy was on the other side of the battlefield. The prosecution has specified Al Qaeda and one of its affiliates, as well as a third organization whose identity, also disturbingly, it classified. (Overclassification is one of the scandals of this story.) At what point could “enemy” mean anyone who doesn’t like us? Can it mean us ourselves, at moments when we think that something has gone wrong, and has to be exposed?

Do we think, more than that, that we, and what our country does, remains invisible, if only we can keep enough respectable people from pointing at it? We live in a world where accounts of battles won’t be locked up only in classified military networks, but will appear in pictures on a villager’s cell phone on the other side of the world. There will be times when it is a general or a President who needs to be held accountable for a crime. At those moments, what hurts the enemy is being able to say that we were the ones who didn’t keep the secrets.

Photograph by Alex Wong/Getty.

Amy Davidson is a New Yorker staff writer. She is a regular Comment contributor for the magazine and writes a Web column, in which she covers war, sports, and everything in between.